Reports have surfaced that some U.S. consulates are denying H-1B visa applications on the ground that the certified Labor Condition Application referenced the incorrect wage level for the position. This can mean significant staffing issues for employers expecting workers on H-1B visas.
In about a month, beneficiaries of FY 2014 H-1B petitions will be able to enter the United States on H-1B visas for the first time. Nonimmigrant workers can enter the country up to 10 days prior to the H-1B start date. The worker must apply for an H-1B visa at a U.S. Consulate, typically in his or her home country, by completing the requisite DS-160 form online, making an appointment, and attending the appointment with the H-1B Petition Approval Notice and petition support documents. With an approved H-1B Petition, this process is usually smooth and the worker receives the H-1B visa within a few days of the interview.
Part of the H-1B Petition is a Labor Condition Application (“LCA”) certified by the Department of Labor. On the LCA, the employer is required to indicate a certain “wage level” for the position. This is typically based on the minimum requirements for the position – not the beneficiary’s qualifications. Recently, some consulates have denied H-1B visa applications on the grounds that the certified LCA referenced the incorrect wage level for the position. This sort of assessment is typically beyond the scope of the consular officer’s jurisdiction. If an employer has H-1B workers who are denied a visa for this reason, the employer should contact an immigration attorney to take steps to present this issue to the Department of State Visa Office for resolution so the worker can obtain his or her H-1B visa and timely enter the United States.